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Can the End Warrantless Surveillance of Americans Act do just that?
As House and Senate leaders continue debating a compromise bill to reform the National Security Agency, three of Congress’ leading privacy advocates are introducing a stronger bill that takes direct aim at some of the NSA’s most controversial surveillance practices.
Reps. Zoe Lofgren (D-Calif.), Ted Poe (R-Texas), and Thomas Massie (R-Ky.) on Tuesday introduced the End Warrantless Surveillance of Americans Act, a bill that would—as it suggests—ban the NSA from warrantlessly searching data gathered under Section 702 of the FISA Amendments Act and prohibit the government from requiring tech companies to build backdoors in their products for easy access by law enforcement.
“Right now, under Section 702 the government is allowed to snoop and spy on the content of a citizen’s phone calls, texts and emails—all without a warrant,” Poe said in a statement. “Failure to address this gaping loophole in FISA leaves the constitutional rights of millions of Americans vulnerable and unprotected.”
“If Congress truly wants to end bulk collections of U.S. persons data, then we must also look at the warrantless surveillance occurring under Section 702 of the Foreign Intelligence Surveillance Act and Executive Order 12333,” Lofgren said in the statement.
Executive Order 12333, signed by President Reagan, is the basis for much of the U.S. surveillance state, despite being subject to minimal congressional oversight.
The prohibition on backdoors mirrors an amendment that Lofgren and Massie added to a 2014 defense spending bill. That amendment passed 293-123, but after the full bill passed the House, the Massie–Lofgren amendment was removed in the Senate.
Poe tried again to attach prohibitions on backdoors and warrantless domestic surveillance to the USA Freedom Act, the NSA-reform legislation that is the product of months of negotiations between the White House and congressional leaders. But the House Judiciary Committee voted not to approve Poe’s amendment when it took up the bill, sending it to the House floor without the protections that Poe, Lofgren, and other privacy-focused legislators consider so important.
The NSA gathers data on American citizens—accidentally, it claims—through two of its largest programs, PRISM and Upstream collection. PRISM refers to NSA agreements with major American tech companies, like Google and Verizon. The first of Edward Snowden‘s stolen documents that the Guardian published in 2013 was a letter from the Foreign Intelligence Surveillance Court (FISC) to Verizon that outlined the phone company’s obligations under PRISM.
Upstream collection is the NSA’s term for intercepting data from the routers and underseas cables that together constitute the Internet. The most famous example of Upstream collection involves Room 641A in an AT&T building in San Francisco, where NSA technicians secretly installed a special device to monitor the immense volume of Internet traffic being routed through the room.
Both PRISM and Upstream collection operate under Section 702 of the FISA Amendments Act. The NSA can dive into the troves of data—the content of Facebook messages, emails, and Web browsing histories—collected under Section 702 without a warrant. But in the process of lawfully targeting foreigners, the programs routinely sweep in data on Americans—data that is then accessible warrant-free.
Lofgren and Poe are just as concerned about encryption backdoors as they are about warrantless spying, and civil-liberties advocates share their concerns. Opponents of backdoors point out that there is no such thing as a key that only works for “the good guys.”
Vint Cerf, one of the creators of the Internet, also opposes the creation of backdoors for law enforcement in hardware and software. Cerf said at the National Press Club on Monday that “creating this kind of technology is super, super-risky.”
Civil liberties groups began weighing in shortly after the bill’s introduction to call it a positive and necessary step beyond the USA Freedom Act.
“Support for the reforms in this bill has echoed through the halls of the House for over a year,” Kevin Bankston, policy director at New America’s Open Technology Institute, said in a statement. “Now it’s up to House leaders to act on their members’ and the American people’s demands that Congress protect the security of their personal devices and block warrantless searches of their private data.”
When the House Judiciary Committee considered Poe’s amendment to the USA Freedom Act, many members said that they supported the substance but not the process. They would vote for it as a standalone bill, they said, but they were concerned that adding it to the USA Freedom Act might scuttle that bill’s chances of passage.
Rep. John Conyers (D-Mich.) applauded the amendment’s goals but warned that adding it to the USA Freedom Act would “endanger the historic passage of these sweeping and bipartisan reforms.”
Rep. Jim Sensenbrenner (R-Wisc.) said, “If this amendment is adopted, you can kiss this bill goodbye.”
Sensenbrenner, who wrote the USA Patriot Act, the 2001 surveillance law that is the target of current reform efforts, said he supported the substance of the amendment even as he voted not to add it to the compromise reform bill.
Rep. Bob Goodlatte (R-Va.), chairman of the Judiciary Committee, was even more blunt.
“We have been assured if this amendment is attached to this bill, this bill is going nowhere,” Goodlatte said. “This amendment is objected to by many in positions who affect the future of this legislation.”
Goodlatte was referring in part to the Obama administration, particularly FBI Director James Comey, who has continually pushed for legislation requiring tech companies to build backdoors into their products. Comey and other top law enforcement officials have said that backdoors are necessary to assist law enforcement agencies in tracking and apprehending dangerous criminals with sophisticated encryption schemes.
“The NSA has and will continue to violate the constitutional protections guaranteed to every American unless Congress intervenes,” Poe said in the statement announcing the bill. “Until we fix this and make the law clear, citizens can never be sure that their private conversations are safe from the eyes of the government.”
We have reached out to Reps. Conyers and Sensenbrenner to ask if they will support the bill in standalone form, as they suggested in the House Judiciary Committee meeting, and will update if we hear back.
Illustration by Max Fleishman
Eric Geller is a politics reporter who focuses on cybersecurity, surveillance, encryption, and privacy. A former staff writer at the Daily Dot, Geller joined Politico in June 2016, where he's focused on policymaking at the White House, the Justice Department, the State Department, and the Commerce Department.